Okay, here’s a quick quiz for you. When a couple divorces under Alabama law and the husband has served in the military for all the 13 years of the marriage, how much of his military retirement does federal law mandate that he share with his wife? The answer is zero. Mr. and Mrs. Meyer in Meyer v. Meyer, Case No. 2040486 (Ala. Civ. App. May 12, 2006) could have avoided a lot of anguish and legal bills if they had known that when they parted.
The parties divorced in 1999. After negotiations, they agreed to insert this provision in the decree: “The [wife] is awarded all benefits to which she may on the date of this decree be mandatorily entitled under the Uniformed Services Former Spouses’ Protection Act (‘USFSPA’), which shall be determined based upon the duration of the marriage.” The problem is that the USFSPA makes no mandate. It merely prescribes the method for dividing military retirement and leaves the applicable percentage up to state law.
When Mrs. Meyer attempted to get a division of her ex-husband’s retirement, she found out that the Defense Finance and Accounting Service (DFAS) would not divide it because the divorce decree contained no specific dollar amount or percentage. So she filed a “Petition to Clarify” the divorce judgment. A first post-divorce hearing was essentially aborted after the judge attempted to sign an order after he had resigned, so the parties held a second hearing before a successor trial judge.
After limited testimony, the trial court ordered that the divorce decree be “reformed to reflect the intent of the parties” to award the wife 32 percent of the husband’s military retirement pay. The husband appealed.
The husdand argued that the original language in the decree was unambiguous and that it called for the wife to receive whatever federal law mandated, namely zero. The wife argued that the original language was ambiguous and that the trial court’s order was necessary to effectuate the intent of the parties.
The appeals court hints that it might have affirmed the trial court’s ruling had it been based on a finding that of mutual mistake. But the appeals court said that “neither party argues that paragraph 5 [the military retirement language] was the product of a mutual mistake, or that paragraph 5 should, by reason of a mutual mistake, be reformed or rescinded.”
The appeals court then analyzed whether the original language was ambiguous. Finding that there was neither patent ambiguity (ambiguity on the face of the language) or latent ambiguity (caused by some external fact not apparent from reading the language itself), the appeals court found that the original language was “clear and easily compredensible” and that the trial court had erred by reforming the original military retirement language on the basis of ambiguity. “Paragraph 5 is not ambiguous.” The appeals court reversed the trial court and instructed the trial court to vacate its order.
Lee’s note: Let’s be clear about what this case says and what it doesn’t say. It says that there’s no federally mandated division of military retirement and that a decree ordering an allocation of the federally mandated military retirement is an award of nothing.
The case does not say that the wife was not entitled to share in the husband’s military retirement. To the contrary, Ala. Code §30-2-51 contemplates a division of retirement plans in divorce. Had the wife insisted in the original divorce negotiations, one assumes the court would have ordered a division. Her mistake was in basing the division on a nonexistent federal mandate.